In Summary
  • The judges and magistrates only know too well how best to package your case if you are to stand a good chance of persuading the court.

  • And so when the JSC attempted to flex its muscle on Jackton Ojwang (Supreme Court judge), Erastus Githinji (Court of Appeal judge), Daniel Ochenja (acting Chief Magistrate), Bryan Khaemba (Principal Magistrate) and Davis Gitonga (Principal Magistrate), it was left with a lesson or two, on how not to handle a judge or magistrate.

The Judicial Service Commission (JSC) is finding it increasingly difficult to remove some judges and magistrates from office.

Whereas the JSC through its advocates has put forward some strong cases against some judges and magistrates, these judicial officers in fighting to save their career, have made it clear that you cannot pick up a fight with a cook in the kitchen, when you don’t know where the knife is kept.

RETIREMENT

The judges and magistrates only know too well how best to package your case if you are to stand a good chance of persuading the court.

And so when the JSC attempted to flex its muscle on Jackton Ojwang (Supreme Court judge), Erastus Githinji (Court of Appeal judge), Daniel Ochenja (acting Chief Magistrate), Bryan Khaemba (Principal Magistrate) and Davis Gitonga (Principal Magistrate), it was left with a lesson or two, on how not to handle a judge or magistrate.

Employment and Labour Relations Court Judge Byram Ongaya faulted JSC for failing to give Court of Appeal Judge Githinji lawful reasons for the imposition of his retirement date as July 1, 2019 when the documents the judge had provided show that he ought to retire on December 30, 2019.

“Thus the court finds that justice Githinji’s date of birth was on December 30, 1949 and he will attain 70 years of age on December 30, 2019 and not on July 1, 2019. Thus the date of retirement as imposed to be July 1, 2019 is found to have been unreasonable and illegitimate,” Justice Ongaya ruled.

He gave his date of birth as 1949 when employed as a magistrate. Subsequently, in accordance with provisions of the Births and Deaths Registration Act, the applicant obtained a birth certificate on October 29, 1999, showing that he was born on December 30, 1949.

CLARIFICATION

On-line personal details maintained by the JSC showed his date of birth as December 30, 1949.

Later on December 22, 2011 the judge provided the same date of birth by completing the vetting questionnaire issued by the Judges and Magistrates Vetting Board.

He has consistently completed the declarations of incomes, assets and liabilities as required under the Public Officer Ethics Act, 2003 using similar details.

“The JSC and the Chief Registrar of the Judiciary (CRJ), have not shown that they ever asked the judge to make a clarification about his date of birth,” said justice Ongaya, adding that it would be unjustified and unfair for the JSC and CRJ to shift their statutory obligation and make it Justice Githinji’s burden.

He said given the evidence presented in court, Justice Githinji clearly notified about his date of birth, but JSC and CRJ made no demand for a clarification.

“The court returns that the decision to retire justice Githinji prematurely amounted to an adverse action or punishment without according him due process of justice,” Judge Ongaya said in the June 28 judgment.

DISMISSAL

Regarding Principal Magistrate Bryan Khaemba, the judge held that his suspension as imposed did not comply with the law.

The suspension letter dated July 13, 2019 and signed by Chief Justice David Maraga, imposed conditions such as nil pay, handing over of all government stores in Magistrate Khaemba’s possession and preparing a detailed handover report to the Chief Magistrate.

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